Finals Essay Flashcards
(140 cards)
1
Q
PJ -general
A
Personal jurisdiction is the court’s power over the person or property. To hear the case the forum court must have both 1) Authority under the state long-arm provisions; and 2) Constitutional authority.
2
Q
PJ - federal long-arm provisions
A
A federal court may only exercise PJ if state court in the state where the federal court sits could do so.
3
Q
PJ - state long-arm provisions - does not ref constitutional limits
A
Here, the court has authority under the state long-arm provisions because [facts].
4
Q
PJ - state long-arm provisions - up to const limits
A
Here, the state’s long-arm provisions allow PJ as long as the constitutional limits are satisfied, thus no separate analysis is needed.
5
Q
PJ - types
A
The court has constitutional authority to hear the case if the requirements for any of the following are met:
a) Consent or waiver;
b) Tag jurisdiction;
c) General in personam jurisdiction;
d) Specific in personam jurisdiction;
e) In rem jurisdiction;
f) Quasi in rem jurisdiction
6
Q
PJ - no property at issue
A
There is no property at issue in this case so in rem and quasi in rem jurisdiction will not be discussed.
7
Q
PJ - consent
A
A court has PJ over a person if he consents to PJ. Here, the court has PJ over P becauseshe consented by filing the case in the forum state court. The court does [not] have PJ over D by consent because [facts].
8
Q
PJ - waiver
A
D waives objection to PJ by failing to raise the issue prior to or in conjunction with his initial answer to the complaint. Here, D did [not] waive objection to PJ because [facts].
9
Q
PJ - tag -rule
A
It is generally accepted that a state has tag PJ if: a) D was served while physically present in forum state; and b) D’s presence was not due to trick or fraud.
However, the constitutionality of tag jdx is not fully settled based on the court’s holding in Burnham.
10
Q
PJ - tag -rule - corporations
A
A forum state does not obtain PJ over a corporate D if the officers or directors were served within the forum state.
11
Q
PJ - tag - app - case law - Burnham
A
There, all 9 justices unanimously agreed there was jurisdiction over the defendant based on his voluntary presence in the state when served, but there was no majority opinion because they differed on the constitutional requirements of tag PJ. 4 justices stated tag PJ is constitutional simply because it is traditional.
4 other justices believed that the Court’s decision in Shaffer required a minimum contacts analysis even for tag jurisdiction. In that concurring opinion the justices stated that the exercise over a D based on his voluntary presence in the state would not violate due process, but did not address the “arising under” element of the Intl Shoe analysis indicating they possibly support a less strict minimumn contacts requirement for tag jurisdiction.
12
Q
PJ- tag - app - our case
A
Here, as in Burnham, D was voluntarily in the forum state when he was served because [facts].
Under the traditional view, this would be sufficient to establish tag PJ.
Under the view of the justices who thought Intl Shoe should apply, D’s presence in the state would count as a minimum contact.
What is not clear is whether the arising under element must also be satisfied.
However, despite this disagreement in the Supreme Court, a majority of circuit courts accept tag PJ as constitutional on the traditional basis.
13
Q
PJ - tag - conclusion
A
Thus, the most likely result is that the forum state does have tag PJ over D.
14
Q
PJ - GJDX - scope
A
When general in personam is present, the defendant can be sued on any claim even if the claim is unrelated to the defendant’s contact with the forum state
15
Q
PJ - GJDX - individual D
A
General in personam jurisdiction (GJDX) is present when an defendant who is an individual is domiciled in the forum state.
An individual is domiciled in the forum state if they:
a) have physical presence in the state with
b) intent to remain for an indefinite period.
16
Q
PJ - GJDX - individual - case refs
A
Gordon v. Steele - P moved away for college, had no definite plans to leave the state where college was located. Mas v. Perry - P had moved away for college but had no intent to remain in state where she was going to college
17
Q
PJ - GJDX - Rule - corp
A
A court has GJDX over a defendant that is a corporation if the defendant’s affiliations with the forum state are so continuous and systematic that they render it essentially “at home” in the forum state.
18
Q
PJ - GJDX - Rule - corp - at home
A
A corp/unincorporated entity is “at home” in its :
1) State of incorporation;
2) State of principle place of business (defined as in Hertz for diversity jurisdiction;
3) Other states under exceptional circumstances
19
Q
PJ - GJDX - App- corp
A
Here, D is incorporated in State A. The high level officers direct business from State A, which is likely to be considered their principle place of business.
However, only [x%] of D’s business takes place in State A. This is similar to the amount of business the defendant’s subsidiary in Daimler did in its forum state.
In contrast, here, D does more than 50% of its business in State B. It is plausible this is the type of exceptional circumstance where the Court would find that a corporation is at home in a state other than its state of incorporation and principal place of business.
A corporation with over half of its business in one state is likely to feel “at home” in the state and not surprised or burdened by having to defend itself in a court there for claims that arose anywhere in the world.
20
Q
PJ - GJDX - App - corp/org case ref
A
Daimler AG v. Buaman - subsidiary had significant facilities and a lot of employees in forum state, but sales amounted to only 2.4% of worldwide sales, so no GJDX.
21
Q
PJ - GJDX - Conclusion
A
Thus, the court does [not] have GJDX over D.
22
Q
PJ - SJDX - general
A
Specific in personam jurisdiction (SJDX) is present if 3 elements are satisfied:
1) D has minimum contacts with the forum;
2) Claim arises from those contacts; and
3) Personal jurisdiction is otherwise fair and reasonable
23
Q
PJ - SJDX - rule - min contacts - gen
A
First, the defendant must have minimum contacts with the forum state. Minimum contacts exist when the defendant has purposefully availed himself of the privileges and benefits of conducting activities in the forum state such that it is foreseeable he will be hailed into court there.
Purposeful availment generally requires an intentional targeting of the forum state.
24
Q
PJ - SJDX - app - min contacts - gen
A
Here, a court would likely find that D purposefully availed himself of the forum state when he did [facts]. This conduct amounts to intentional targeting of the forum state because [facts].
25
PJ - SJDX - min contacts - general - case ref : WWV/Intl Shoe
Similar to Worldwide Volkswagen, D did not have any contacts with the forum state other than the fact his product ended up in the forum state after being purchased by a consumer. The court states there that mere foreseeability that a product might end up in a forum state was not sufficient to satisfy minimum the minimum contact requirement.
WWV and this case are distinguishable from International Shoe, where the defendant had intentionally targeted the forum state by hiring contractors to peddle its shoes to customers in the forum state.
26
PJ - SJDX - min contacts - rule - single contact
Here, as in McGee v. Intl Life Ins. Co, a single, intentional contact may be sufficient to satisfy the minimum contacts test.
Like the D there, D targeted the forum state when he did [facts]. Even though this was D's only contact with the state it is likely enough to satisy the minimum contacts test.
27
PJ - SJDX - min contacts -0rule - contracts cases
In *Burger King*, the Supreme Court made it clear that an individual’s contract with an out-of-state party alone is not sufficient to establish minimum contacts.
The Court stated factors such as a) course of negotiation, course of performance, b) consequences of breach and c) terms of the contract must be evaluated to determine if there was purposeful activity directed at the forum state.
28
PJ - SJDX - min contacts -app - contracts - choice of law provision
The court in Burger King also found, that while a choice of law provision alone is not sufficient to show a defendant, purposefully availed himself of the benefits of the forum state, such a clause combined with other factors reinforces the defendant’s deliberate affiliation with the forum state.
Here, there is also a choice of law provision, that combined with [facts], supports a court finding the minimum contact element is satisfied.
29
PJ - SJDX - Min contacts - issue - SOC
The law is unsettled as to what constitutes minimum contacts when a defendant places a product in the stream of commerce.
30
PJ - SJDX - Min contacts - SOC defined
This is a stream of commerce case because D is an out-of-state manufacturer [of component parts sold to another company that manufactured the finished product and sold it into the forum state][who sold its product to a wholesaler or retailer who then sold the product in the forum state].
31
PJ - SJDX - Min contacts - rule - SOC general
There are three alternative views from the Supreme Court as to how minimum contacts is satisfied in SOC cases:
1) Brennan’s Pure stream-of-commerce view;
2) O’Connors Stream of commerce “plus” view;
3) Steven’s middle ground view
32
PJ - SJDX - Min contacts - rule - SOC - pure
Under the pure stream of commerce view, all that is necessary is that the defendant placed its product into the stream of commerce with awareness that the product is being sold in the forum state.
33
PJ - SJDX - Min contacts - app - SOC - pure
Here, the pure stream of commerce test would be satisfied. By [selling the component parts to the manufacturer][selling its product to a wholesaler/retailer], D placed the product into the stream of commerce. D was also aware the product was being sold in [forum] because [facts].
34
PJ - SJDX - Min contacts - rule - SOC - plus
Under the stream of commerce “plus” view, there must be some activity purposefully targeted at the forum state in addition to placing the product into the stream of commerce.
35
PJ - SJDX - Min contacts - app -SOC - plus - ashahi
In Asahi, O’Connor suggested actions such as
1) catering to the market,
2) advertising in
3) directing communications to consumers in; or
4). contracting third parties to sell the product within the forum state
would amount to purposeful availment.
Here, a court would likely find the test was [not] satisfied because [facts]. D’s conduct is [like]][distinguishable from] the conduct of the defendant in Asahi because [facts].
36
PJ - SJDX - Min contacts - rule - SOC - middle ground
Under Steven’s view, the determination of minimum contacts would consider the volume of activity and the value of sales in the forum state, along with the hazardousness of the product.
37
PJ - SJDX - Min contacts - qpp - SOC - middle ground
Here, the minimum contacts case would also likely be satisfied. D does [% of business] in the forum state, and [other factors supporting].
38
PJ - SJDX - Min contacts - rule - int torts
The test for purposeful availment in intentional torts cases where the defendant’s tortious conduct in one state causes an effect in another state is whether the defendant’s conduct was expressly targeted to have an effect in the forum state (Calder Effects Test”). The court looks at the focal point of the conduct and the tortious activity.
39
PJ - SJDX - Min contacts - app - int torts - case ref - Walden
The fact that P may continue to feel the effects of D’s actions in the forum state is irrelevant. Like the Court held in Walden, the effect must be from the defendant’s express targeting of the forum, not from the unilateral acts of the plaintiff. Here, [explain why the effect was the unilateral act of P].
40
PJ - SJDX - Min contacts - app - int torts - case ref - Calder
Like in Calder, the defendant seemed to expressly target his conduct to have an impact in the forum state because he [used sources, knew the defendant’s career would be impacted, etc.].
41
PJ - SJDX - Min contacts - rule - internet -
The defendant posting something on the internet does not necessarily mean he purposefully availed himself of the benefits and protections of every forum state just because the internet is available everywhere. The posting must be expressly targeted to have an impact in the forum state in order for there to be minimum contacts.
42
PJ - SJDX - Min contacts - app - internet - case ref - Burdick
This is similar to the Burdick case where the court found a FB post about someone in the forum state, but involving activity in another state, where the defendant’s FB friends who saw the post were located, was not purposeful targeting of the forum state.
43
PJ - SJDX - Min contacts - rule - selling directly in/to forum
Directly selling an item or delivering an item to the forum state is likely to always be considered a minimum contact with the state.
44
PJ - SJDX - Min contacts - app - selling directly in forum
Here, unlike in Worldwide Volkswagen, the defendant [sold][shipped] its product directly [to][in] the forum state.
The defendant’s activity was analogous to the national magazine publisher selling its magazines in the forum state in Keeton.
LIn addition, the Court held in McGee that even a single, intentional contact with the forum state was sufficient to create minimum contacts. D’s conduct was intentional because [facts].
Thus, like in Keeton and McGee, a court is likely to find that the defendant had minimum contacts because he purposefully directed his conduct at the forum state
45
PJ - SDJX - min contacts - conclusion
In conclusion - a court will likely find D did [not] have minimum contacts with the forum state.
46
PJ - SJDX - Arising - issue
Second, the claims must arise from those contacts.
47
PJ - SJDX - Arising - SOC
It is not clear from Asahi whether a seprate "arising from" analysis is required for stream of commerce cases because none of the opinions addressed whether there was an additional conntection related to the case other than satisfying the related test. It could be said that putting the product into the SOC gives arise to the claim.
48
PJ- SJDX - Arising - rule
Three are 3 possible tests for this element:
1) But-for;
2) Evidence test;
3) Ford “related to” test
49
PJ- SJDX - Arising - rule - but for
Under the but-for test, a claim arises out of defendant’s forum state contacts if but-for D’s contacts with the forum, the claim would not have arisen.
50
PJ - SJDX - Arising - but for -case ref - Intl Shoe
For example, in International Shoe, but for the defendant hiring contractors to peddle its shoes in the forum state, it would not have owed unemployment taxes to the state.
51
PJ - SJDX - Arising - but- for -case ref - McGee
For example, in McGee, where but for the defendant selling a life insurance policy to an individual in the forum state, the plaintiff’s breach of contract claim due to the defendant failing to pay out on that policy would not have arisen.
52
PJ - SJDX - Arising - app -- but for
Here, like in [International Shoe][McGee] but for D [doing this,], P’s [claim] would not have arisen because [facts/analysis].
53
PJ - SJDX - Arising - conclusion - But for
Thus, a court will likely find P’s claim arose from D’s contacts with the forum state if the court relies on the but-for test.
54
PJ - SJDX - Arising - rule - evidence
Under the evidence test, a claim arises out of D’s forum state contacts only if D’s contacts offer evidence for at least one of the elements of the claim.
55
PJ - SJDX - Arising - app - evidence - case ref
For example, in Intl Shoe, the defendant hiring individuals to peddle its shoes in the forum state likely could have been raised as evidence of why the defendant owed unemployment taxes to the state. Unemployment taxes are directly related to a company’s employment of state residents.
56
PJ - SJDX - Arising - app - evidence - our case
Here, [un]like the situation in Intl Shoe, D’s forum state contacts would likely [not] offer evidence for an element of P’s claims because [facts].
57
PJ - SJDX - Arising - conclusion - evidence
Thus, a court will likely find P’s claim did [not] arise from D’s contacts with the forum state if the court relies on the evidence test.
58
PJ - SJDX - Arising - rule related to
Under the Ford related-to test, a claim arises out of defendant’s forum state contacts if the contact is sufficiently related to the claim.
59
PJ - SJDX - Arising - app - related to - case ref - Ford
In Ford, the Supreme Court did not provide a brightline explanation of what constitutes “sufficiently related”.
The court considered the fact Ford was doing the same thing in Montana as they do elsewhere, and Ford’s significant ongoing connections with the forum state – including cultivating a market for new and used car sales through ongoing maintenance, repairs, replacement parts, advertising, customer support, etc. - as important to the determination of whether Ford’s contact with the forum state were sufficiently related to the plaintiff’s claim.
In addition, in distinguishing Ford from Bristol Meyers, where it found the claim did not arise from the defendant’s contacts despite similar types of on-going contacts, the Court noted that in Ford, the plaintiff had also been injured in the forum state.
Reference to the plaintiff alludes to the plaintiff’s and the forum state’s interest in having the claim heard there. Normally these interests are reserved for the fairness factor element of SJDX but appear to be relevant to the related to test.
60
PJ - SJDX - Arising - app - related to
Here, [un]like in Ford…… However, this case is similar to Ford in that [facts].
61
PJ - SJDX - Arising - conclusion - related to
Thus, it is [not] likely that a court applying the related to test would find that the arising out of element has been satisfied.
62
PJ - SJDX - Arising - overall conclusion
In summary….However, since a majority of courts apply the but-for test, and that test is likely to be satisfied in this case, it is very likely that a court would find that the claim arose from the defendant’s contacts with the forum state.
63
PJ - SJDX - Fairness - issue
Third, personal jurisdiction must be fair and reasonable.
64
PJ - SJDX - Fairness - rule general
The Supreme Court has identified at least 5 fairness factors:
1) Burden on the defendant in defending the case in the forum state;
2) The forum state’s interest in adjudicating the claim;
3) The plaintiff’s interest in obtaining relief;
4) The legal system’s interest in efficiency;
5) Shared substantive policies of the states
65
PJ - SJDX - Fairness - rule - compelling case
Although this is a required element for SJDX, the Supreme Court clarified in Burger King that it is a rare case where the fairness analysis would preclude a finding of SJDX if the first two elements had been satisfied.
A defendant who has purposefully directed his activities into the forum state would have to present a compelling case of unfairness, demonstrating he would be at a severe disadvantage if the case is litigated in the forum state.
66
PJ - SJDX - Fairness - app - case ref - Ashai
In Ashai, the only Supreme Court case where the finding of no SJDX turned on the fairness factors, all of the factor’s weighed towards it being unfair for the state to exercise SDJX over the defendant.
67
PJ - SJDX - Fairness - app - our case
Here, most of the fairness factors do not weigh against the court exercising SJDX over the defendant.
The burden on the defendant is [light/heavy] because [facts].
The forum state’s interest in hearing the claim is strong because [facts].
The plaintiff’s interest in obtaining relief in the forum state is strong because [facts].
The legal system’s interest in efficiency points towards the forum state since the witnesses and evidence are there.
The final factor has never been defined or explained by the Supreme Court, so does not seem to bear must importance. However, it could be said the states have a shared interest in adjudicating claims of this type because [facts].
68
PJ - SJDX - Fairness - app - counter
The defendant will likely argue the burden to him to litigate in the state is great as compared to the plaintiff’s burden to litigating in a different state.
Plaintiff is a large, multinational corporation that has locations in multiple states and can easily defend a case in another state.
On the other hand, the defendant is a small business owner with very little wealth. Hiring out-of-state lawyers, paying for travel, including for witnesses, could be detrimental to his finances.
However, this is similar to the argument the defendant made in Burger King, which the Court did not find to be a compelling case of unfairness, noting that the relative wealth of the parties was not sufficient to create a severe disadvantage to the defendant in the forum state.
Thus, it is not likely this argument will be successful in this case.
69
PJ - SJDX - Fairness - conclusion
Thus, a court will most likely find that it is fair and reasonable for D to defend the case in the forum state.
70
PJ - SJDX - overall conclusion
In conclusion …...
71
PJ - Quasi - Issue
The issue is whether the forum state has personal jurisdiction over the defendant’s property.
72
PJ - Quasi - Rule
In Shaffer, the Supreme Court held that the SJDX test of International Shoe applies to jurisdiction involving property.
73
PJ - Quasi - rule- ownership of property
If the defendant owns property in a forum state, he has purposefully availed himself of the benefits and protections of the forum state and can reasonably expect to be haled into court there.
74
PJ - Quasi - rules and app
See SJDX
75
SOP - issue
This issue is whether there was proper notice and service of process on the defendant.
76
SOP - rule - general
Service of process must be both: 1) Of a manner authorized by statute or court rule; and 2) Constitutionally sufficient
77
SOP - statute - issue
The FRCP govern service of process in federal courts.
To determine if service was proper under the FRCP we must examine:
1) Who served process on the defendant; and 2) Manner of service
78
SOP - statute -rule - who
First, FRCP allow any person over the age of 18 who is not a party to the case to serve the defendant.
79
SOP - statute - app - who
Here, X served the defendant, which [does not] satisfy[ies] the FCRP because X is [not] a party to the case.
80
SOP - statute - manner - rule - indivdual
Second, the FRCP provides that service on an individual can be done by:
a) In-hand service;
b) leaving complaint and summons at D’s home with someone of suitable age who resides there;
c) Delivery to an agent of D authorized to receive service;
d) Following the rules established by
i) the state in which the district sits or
ii) the state in which process is made.
81
SOP - statute - manner -app - indiv -general
Here, the manner of service was [facts], which satisfies the FRCP.
82
SOP - statute - manner - app - indiv - D's home
Here, the manner of service was at D’s home. The process server left the complaint and summon with X who was [not] a person of suitable age who resides there because [facts].
83
SOP - statute - manner - rule - corp
Second, the FRCP provide that corporations can be served by:
a) Delivering a copy of the summons and complaint to an officer, managing agent, or a general agent of the entity;
b) Delivering the papers to an agent authorized by law or by appointment to receive service of process;
c) Serving process under state rules in either:
i) the state where federal court sits; or
ii) the state where service is made.
84
SOP - statute - manner - app - corp - general
Here, service was made to X. X was appropriate to receive service of process because [facts].
85
SOP - statute- waiver - defined
The FRCP also define a process by which P may notify D of the action and request waiver of service of process.
86
SOP - statute - waiver - failure to waive
Failure to waive without good cause results in an order to pay expenses of service and expenses in seeking recovery of those expenses.
87
SOP - statute - waiver - D waives
Defendants who waive are given 60 days to respond to the complaint instead of the typical 21 days.
88
SOP - statute -waiver - app
Here, P requested waiver of service, [but][and]D [failed to waive][waived]. Thus, [impact].
89
SOP - statute - conclusion
Thus, the manner of service was appropriate under the FRCP.
90
SOP - constitutional - issue
The manner of notice must also be constitutional.
91
SOP - constitutional - rule
To satisfy the constitutional requirements, the manner of notice must be reasonably calculated to provide actual notice to the defendant.
92
SOP - constitutional - app - FRCP
Generally, any manner authorized by the FRCP, other than the ability to use the state statutes/rules, will satisfy the constitutional requirements.
Therefore, P’s use of [method] as authorized by the FRCP satisfies the constitutional requirements.
93
SOP - constitutional - rule - publication
Generally, publication alone is not sufficient to be reasonably calculated to provide actual notice unless there are no better options. The Constitution requires targeted notice when the defendants are known and locatable.
94
SOP - constitutional - rule - had addresses
Here, P used [method] as authorized by X state statute. P’s use of [method] even though he had addresses for defendants. A court is likely to find, as did the justices in Mullane, that publication by newspaper was not sufficient for those defendants whom the plaintiff could identify and had addresses for.
95
SOP - constitutional - app - no addresse/Baidoo
Here, P used [method] as authorized by X state statute. P will argue he had no better options because [facts]. This is similar to the Baidoo case where the state court found service by Facebook messenger was reasonably calculated to result in actual notice. In this case, as in Baidoo, P did not have a current address for D, but was able to communicate with D through [method]. P also called and notified D by [method] that he had been served, as did the defendant in Baidoo. Since D frequently logs onto X, and P is able to communicate with him by phone, this method is likely to be found to be sufficient to result in actual notice to D.
96
Venue - determine proper - issue
The issue is whether X state is a proper venue for this case.
97
Venue - determine proper - venue defined
Venue refers to the geographic location where the case is heard. Authorization for venue may be found in a general or a specialized statute and has no constitutional requirements.
98
Venue - determine proper - GS - rule
The general federal statute provides 3 options for determining whether venue is proper:
1) A judicial district in which any D resides, if all Ds are residents of the State in which the district is located;
2) A judicial district in which a substantial part of the events giving rise to the claim occurred; or
3) If there is no district in which an action may be brought under the other options, any judicial district in which any D is subject to the court’s PJ with respect to such action.
99
Venue - determine proper - GS - resident - rule
First, venue is proper in any judicial district in which any D resides if all Ds are residents of the State in which the district is located.
100
Venue - determine proper - GS - resident - individual
An individual is a resident of the state in which he is domiciled. An individual is domiciled in the state in which he has a) physical presence with b) intent to remain for an indefinite period.
101
Venue - determine proper - GS - resident - app - individual - app
See SMJ – Diversity – same analysis
102
Venue - determine proper - GS - resident - rule - corp/entity
A corporation/association/unincorporated entity is a resident in any judicial district in which the corporation is subject to the court’s personal jurisdiction
103
Venue - determine proper - GS - resident - rule - more than one district
If there is more than one judicial district in the state, each district is treated as it’s own state and the court must determine in which district the D has contacts.
104
Venue - determine proper - GS - resident - app - corp/entityh
Here, D is subject to personal jurisdiction in [states].
105
Venue - determine proper - GS - resident - one defendant
Here, there is only one defendant, thus X is a proper venue for D because he resides there.
106
Venue - determine proper - GS - resident - multiple ds
Here, X is [not] a proper venue because [facts].
107
Venue - determine proper - GS - substantial - issue
Second, venue is proper in any judicial district in which a substantial part of the events giving rise to the claim occurred.
108
Venue - determine proper - GS - substantial - rule - broad
The majority of courts define “substantial part of the events” broadly to include any judicial district which was part of the sequence of events giving rise to the claim.
109
Venue - determine proper - GS - substantial - app - broad \
This is similar to Uffner, where the court found the plaintiff’s chosen venue was proper because that is where the event occurred that resulted in the insurance claim; the denial of which was the basis of the lawsuit.
Here, as in Uffner, X is where [event] happened. It was this event that caused [facts], which subsequently resulted in P’s y claim.
Because X was part of the sequence of events that led to the claim, it is likely a court will find X was a proper venue.
110
Venue - determine proper - GS - substantial - app - broad - case ref - Uffner
Here, X is where [facts about what happened] occurred, which was part of the sequence of events giving rise to the claim because [facts].
111
Venue - determine proper - GS - substantial - rule - narrow
A minority of courts apply a more narrow test which states a proper venue is only a place where a substantial part of the events giving rise to the claim occurred if
a) D was responsible for the forum related event and
b) the event is a point of dispute between the parties.
112
Venue - determine proper - GS - substantial - app - narrow - case ref - Uffner
For example, in Uffner, the defendant was not responsible for the forum related event (boat fire) and the dispute was whether a more thorough inspection of the boat was needed, which had nothing to do with the plaintiff’s chosen venue.
113
Venue - determine proper - GS - substantial - app - nnarrow test
Here, venue would likely be found to [not] be proper because [fact].
114
Venue - determine proper - GS - substantial - overall conclusion
Thus, the court would likely find X venue was proper.
115
Venue - determine proper - GS - fallback -rule
Third, if there is no district in which an action may be brought under the other options, any judicial district in which any D is subject to the court’s PJ with respect to such action.
116
Venue - determine proper - GS - fallback - app - does not apply
This does not apply since venue was found to be proper under both of the other options.
117
Venue - determine proper - GS - fallback - app - when arises
This is generally only an issue with claims that arose outside of the US with non-US citizen defendants.
118
Venue - determine proper - GS - fallback - app
Here, venue is proper in [forum states] because [facts]. OR Here, there is no proper venue in the United States.
119
Venue Xfer - issue
The issue is whether the case can be transferred to another court.
120
Venue Xfer - current not proper - rule
Because venue is not proper in X, the federal court must dismiss the case or transfer to a court of proper venue with personal jurisdiction over the defendant if it would be in the interest of justice.
121
Venue Xfer - current not proper - rule - justice
Dismissal in these type of actions rarely occurs because it is more efficient and less costly for P if case is transferred versus dismissed. If the case is dismissed, P must re-file, resulting in additional filing fees and other expenses.
122
Venue Xfer - current not proper - conc
[First, identify where venue is proper]. Thus, the court would likely transfer the case to [forum(s). OR if no venue proper: Thus, the court will likely dismiss the case.
123
Venue Xfer - current proper - rule
A federal district court will transfer to another federal district court if 3 elements are satisfied:
1) Venue is proper in the forum;
2) Venue and jurisdiction would be proper in the transferee court (or waived); or
3) Transfer is in the interest of justice and services the convenience of the parties.
124
Venue Xfer - current proper - venue proper - rule
First, venue must be proper in the current forum.
125
Venue Xfer - current proper - venue proper - app
Venue is proper in X because [facts].
126
Venue Xfer - current proper - xfer court - rule
Second, venue and personal jurisdiction would be proper in the transferee court (or waived).
127
Venue Xfer - current proper - xfer court - app
Here, venue and personal jurisdiction would be proper in Y because [facts].
128
Venue Xfer - current proper - justice - rule
Third, the transfer must be in the interest of justice and serve the convenience of the parties. Whether a transfer would satisfy this test is done by weighing the private and public interest factors.
129
Venue Xfer - current proper - justice - private interest factors
1) P's choice of forum;
2) D's choice of forum;
3) whether claim arose elsewhere;
4) convenience of parties;
5) convenience of witness
6) ease of access to sources of proof
130
Venue Xfer - current proper - justice - public interest factors
1) Transferee's familiarityh with the governing law;
2) relative congestion of the calendars of the potential xferee and xferor courts;
3) local interest in deciding local controversies at home
131
Venue Xfer - current proper - justice - app
Here, [analyze factors]
132
Venue Xfer - current proper - justice - conclustion
Thus, the court is [not] likely to grant D’s motion to transfer to x forum.
133
Venue Xfer - Forum non convenis - issue (fed court)
If venue is proper but the court determines a court outside of the federal system is more appropriate, the court may be able to dismiss the case under the judicial doctrine of “forum non convenis”.
134
Venue Xfer - Forum non convenis - issue (state court)
If venue is proper but the court determines a court outside of that state’s system is more appropriate, the court may be able to dismiss the case under the judicial doctrine of “forum non convenis”.
135
Venue Xfer - Forum non convenis - rule
Courts employ the same factors as a 1404 transfer, however, the private and public interest factors need to favor dismissal more strongly than a 1404 transfer.
136
Venue Xfer - Forum non convenis - rule - foreign law less favorable
A court will deny the motion to dismiss if the foreign remedy “is so clearly inadequate or unsatisfactory that there is no remedy at all.”
137
Venue Xfer - Forum non convenis - app
See above – current forum is proper venue
138
Venue Xfer - Forum non convenis - app - case ref - Piper Aircraft
Piper Aircraft v. Reyno: Venue in Scotland made more sense than US court because witnesses and plaintiffs were in Scotland even though the remedy for the plaintiffs in Scotland was less favorable than the remedy available in the plaintiff’s choice of forum.
139
Venue Xfer - Forum non convenis - impact of dismissal
Plaintiff would have to re-file in the other system.
140
Venue Xfer - Forum non convenis - conclusion
Thus, the court will most likely [not] grant the forum non convenis dismissal.
